April 26, 2007

Here's Linda Greenhouse's write up on the Supreme Court argument in the Wisconsin Right to Life case, which is about the provision the McCain-Feingold campaign finance law that prohibits issue ads right before the election if they mention the name of a candidate. The Court rejected a facial challenge in McConnell in 2003, but this is an as-applied challenge, and, moreover, McConnell was decided 5-4 with O'Connor in the majority. Alito has replaced O'Connor and may be expected to vote with Scalia, Thomas, and Kennedy, who dissented in McConnell. The fourth dissenter was Rehnquist, and Roberts, who replaced Rehnquist may be expected to join Scalia, Thomas, and Kennedy as well.

For the first half-hour of the argument, Justice Alito said nothing, leaning forward in his seat at the end of the bench with an intense expression. He finally intervened during the argument by Seth P. Waxman, who was defending the law on behalf of a group of its Congressional supporters including Senator John McCain, the Arizona Republican who is the other lead sponsor.

What would happen, Justice Alito asked Mr. Waxman, if a group had been running an advertisement about an issue, “and let’s say a particular candidate’s position on the issue is very well known to people who pay attention to public affairs.” Suppose the blackout period established by the law was approaching — 30 days before a primary or 60 days before a general election — “and an important vote is coming up in Congress on that very issue.” Could the group be prohibited from continuing to broadcast the ad?

That would depend on the context, Mr. Waxman replied.

Justice Alito did not appear satisfied. “What do you make of the fact that there are so many groups that say this is really impractical?” he asked. His reference was to the impressive array of ideological strange bedfellows that filed briefs in support of Wisconsin Right to Life’s challenge. These range from the American Civil Liberties Union to the National Rifle Association to the United States Chamber of Commerce to the AFL-CIO.

“I love it!” Mr. Waxman replied energetically, as if he had been waiting for just such a question. He said that although these many groups opposed the law, they were living with it and contenting themselves with running advertisements that advocated their positions on issues without mentioning candidates. The only two as-applied challenges, he noted, had both been brought by Wisconsin Right to Life’s lawyer, James Bopp Jr., who also has another case pending before the court.

Chief Justice Roberts was unimpressed by this line of argument. “I think it’s an important part of their exercise of First Amendment rights to petition their senators and congressmen and to urge others to, as in these ads, contact your senators, contact your congressmen,” he said, adding, “Just because the A.C.L.U. doesn’t do that doesn’t seem particularly pertinent to me.”

Clement spends his rebuttal time tussling with Scalia, who seems to love nothing more these days. But when we file out of the courtroom, it doesn't look like Clement's snagged his five votes for the proposition that an ad that quacks and has webbed feet is probably a duck, aka an attack ad in disguise. And, much to Breyer's dismay, if that means gutting the electioneering provision of McCain-Feingold, so be it. When it comes to curbing corruption versus curbing political speech, it looks like speech is the winner today. Which means that there will be an awful lot more vicious, snarling, not to mention expensive, ducks coming to your TV screens next election season.

Then bring on the ducks. We will roast them right here to a fine crispy finish.

Do the First Amendment's prohibitions against restricting political speech or petitioning Gov't for the redress of grievances establish a rule or only a standard? The Court goes back and forth on that basic issue. It's unlikely that it will ever be resolved.

Some years ago, Kathleen Sullivan was giving a lecture at a Federal Bar Council conference that I attended. As I remember it, Justice Thomas was in the front row. The theme of her talk was "rules vs. standards," and her point was that the difference between the two provided a more useful way to understand the divisions among the justices. At the end of her talk, Justice Thomas was full of praise for her analysis, and made a point of saying that the "rules vs. standards" distinction provided a truer measure of the underlying differences between the justices than the usual "liberal vs. conservative" vapidity. Standards invite balancing tests, weighing of one interest or value against another, and generally provide the decisionmaker (i.e., SCOTUS) with lots of discretion. For an institution that thinks of itself as a natural player on the national stage, "the least dangerous branch," viewing constitutional provisions as embodying a standard rather than a rule has a lot of appeal. Rules are, well, rules. Even though every rule has its exceptions, the point of a rule is that it determines the value that is to prevail in the event of a conflict. It is intended to be outcome determinative, in a way that a standard is not.

I expect that we will see that basic dividing line show up in the Court's decision in the Wisc Rt to Life case. It's easy to see 4 votes for the "standards" approach; and probably 4 for the "rules" approach. But I doubt that the opinions will discuss the issue in those terms. Nevertheless, the basic distinction is quite likely to run through the majority and dissenting opinions (whichever side wins this round). So where is Kennedy on this one? I suspect that even he is not quite sure.

The preamble to the 2nd is archaic in its use of language and terminology, so that it is understandable how there can be intellectually honest argument about its proper meaning. What I don't understand is how so many brilliant people can convince themselves that they can wriggle out of those first 4 words of the 1st amendment. But then I'm just a stupid engineer and haven't had the privilege of having all ability to read and reason beaten out of me by a "Living Consitution" professor.

McCain Feingold is a disgusting, immoral law and all who had a hand in it should be impeached. Bush, Congress, and the 5 USSC justices. It's as bad a decision as Dred Scott, but it accomplishes "Liberal" ends so it is good. The Warren Court lives!

From Dahlia's piece:"Solicitor General Paul Clement has the first 20 minutes to defend the law, and he continues his recent pattern of being just this side of sassy about it. He explains that the WRTL ads at issue here are functionally indistinguishable from ads the court agreed to regulate in McConnell v. FEC ....' Scalia gets right to the point: 'Well, maybe we were wrong last time.'"

Classic Nino. I get that there's some folks out there who don't feel about Scalia as I do. But honestly, I don't know what's wrong with y'all. I don't understand how can you not love the guy. As Dahlia's put the point before, "Scalia doesn't come into oral argument all secretive and sphinxlike, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows what the law is. He knows what the opinion should say. And he uses the hour allocated for argument to bludgeon his brethren into agreement. Usually this is sort of fun and charming[.]"

Yeah, if someone wanted to draft an article of impeachment against Bush for having signed Mccain-Feingold into law, I'd be in favor of that. Particularly since he admitted when he signed it that he thought it was unconstitutional -- er, that's a violation of your oath to uphold the Constitution then, isn't it George?

The transcript of the oral argument is posted on the SCOTUS website. It was an interesting read. SG Clement gave as good as he got from Scalia, and neither seemed to mind the exchange. And Scalia got the only laugh when he suggested to WRTL's counsel that he didn't have to be wary of Greeks bearing gifts whenever Souter asks a question -- instead, he could actually answer "yes" wihtout hurting his argument.

For Breyer and Souter, it's clear that this case is mainly a repeat of McConnell. At times Scalia, too, seemed to share that view. CJ Roberts and Alito were trying to make sense of the "as applied" challenge standing on its own. But all of them adverted, in one way or another, to the obvious tension with McConnell. The reason why this case is, in many ways, more than just an as-applied challenge is that no one could formulate a satisfactory test to distinguish a "genuine issue ad" -- a category that in McConnell and WRTL I the Court suggested could be exempted from McCain-Feingold on an as-applied challenge -- from an electioneering ad. The main point of McCain-Feingold was to subject electioneering ads to regulation, by (inter alia) imposing blackout periods, pegged to the timing of primary or general elections. The problem with the proffered tests to distinguish issue ads from electioneering ads was that they either tended to protect nothing from regulation (if the intent or the message was to influence an election, judged by "context", then it's electioneering), or they could be easily used to protect everything from regulation (if the ad addresses a current legislative issue and doesn't expressly advocate a vote for/against a candidate, it's an issue ad). Since the default rule in First Amendment cases is that doubts are resolved in favor of speech, not the suppression of speech, and that all such regulation is subject to strict scrutiny, the muddle about defining the proper test favors the WRTL.

As for Kennedy, he seems to be where he was in McConnell -- with the "rules" crowd and against the regulation/suppression of the WRTL's political speech. Judging by the oral argument, it certainly looks like WRTL will win this round.

I join Rev's 12:43 comment. I alos think Richard's right that WRTL's going to carry the day here, but it's going to be interesting to see what they come up with to accomplish that result without overruling McConnell (which ought to be done, but I very much doubt that there's a majority for that).

The thing that bugs me about the coverage of these campaign finance reform cases is the prevailing assumption that, as Lithwick puts it in the excerpt above, the issue is "curbing corruption versus curbing political speech." The case that the electioneering provisions or any other part of McCain-Feingold actually reduces corruption is non-existent.

Punishing political speech will never - under any circumstances - reduce corruption in politics. It is a totally misguided non-cure to a problem that is inherent in a democratic system. If a central theoretical underpinning of open government and a free press is that sunshine is the best disinfectant, I don't understand how so many intelligent people can subscribe to the notion that we need our government to keep us from hearing too much political speech.

It is painful to read these argument transcripts and see members of the Court straining to find some way to preserve McCain-Feingold's various constitutionally deficient provisions out of fear that if they don't, corruption will devour the system. It won't happen. McCain-Feingold won't stop water from running down hill and it hasn't and won't take corruption out of politics.

So in a couple months, when we get another monstrous 90 page plurality decision purporting to balance the corrupting influence of too much speech against that pesky 1st Amendment, I think I will take a pass on reading it.

I look forward to reading J. Thomas's decision when this case comes down (be it concurring or dissenting), if only to preserve my hopes that the Court will one day have the resolve to overturn Buckley.

Giving money to an organization promoting a political message is speech. I don't care if that organization is a campaign, a corporation, a union, a PAC, or a 501(c)(3). There's an efficiency argument at play here; it's far more effective for me to donate money to a group espousing views I support than it is for me to spend that same money renting a bullhorn and a soapbox and stating those same views to random passers by.

There is no legitimate justification that I know of for the Court's rationale as to when money spent by a campaign is free speech, but money spent by individuals (in giving it to those same campaigns) is not speech.

Buckley, like Roe, was wrong the day it was issued, not because of the conclusion it reached, but because it failed to make a conclusion. (In other words, it's okay for X, but not for Y.)McCain-Feingold exists because of the Court's weak, half-a-loaf solution in Buckley.

(BTW...Wasn't McCain-Feingold supposed to "take the money out of politics?" How's that going? 501(c)(3)'s are the new 'Soft Money,' and the spending totals for political races are still going up.)

I only read Lithwick when she's quoted in a blog (though I did look over the piece Ann linked) and I'm still trying to wrap my head around what she wanted to say in that paragraph. The word 'corrupt' wasn't used in her piece until that line, but the issue in this case is corruption vs free speech? Free speech is going to win but that means we're going to have more corrupt ducks crapping on tv? If we want more free speech we have to allow the government to control more speech? WTF???

Clement spends his rebuttal time tussling with Scalia, who seems to love nothing more these days. But when we file out of the courtroom, it doesn't look like Clement's snagged his five votes for the proposition that an ad that quacks and has webbed feet is probably a duck, aka an attack ad in disguise. And, much to Breyer's dismay, if that means gutting the electioneering provision of McCain-Feingold, so be it. When it comes to curbing corruption versus curbing political speech, it looks like speech is the winner today. Which means that there will be an awful lot more vicious, snarling, not to mention expensive, ducks coming to your TV screens next election season."

Yes Dalia because anytime someone speaks out of turn and criticizes an incumbent that is corruption. God I loath that woman!! Lithwick says that like she is sad speech may win out. Of course vicious attack columns written by two bit hack legal reporters will always be okay Lithwick land. Free speech is free speech for people like her, not for us peasants or worse yet Republicans!!

We currently live under a Constitutional regime where artistic expression receives more protection than political expression. It is just bizarre.